THIRD DIVISION

[G.R. No. 134854. January 18, 2000]

FELIZARDO S. OBANDO and the ESTATES of JOSE FIGUERAS and DOA

ALEGRIA STREBEL VDA. DE FIGUERAS, petitioners, vs. EDUARDO F.
FIGUERAS and AMIGO REALTY CORPORATION as represented by
ANTONIO A. KAW, respondents.
DECISION
PANGANIBAN, J.:
In resolving this appeal, the Court invokes the following principles: (1) a lawyers standing in a
case remains, until a substitute takes over pursuant to Section 26, Rule 138 of the Rules of Court;
(2) a trial court may act upon a motion to dismiss at any time a ground therefor becomes
available, even after a responsive pleading to the complaint has already been filed; (3) a civil
case initiated by an estate administrator may be dismissed upon a showing that the said
administrators appointment as such has been revoked by the probate court; and (4) the dismissal
of an action may be made after the ground therefor becomes known, even if the trial court has
refused to do so earlier when that ground was not yet available.
The Case
Before us is a Petition for Review under Rule 45 of the Rules of Court, seeking to annul the July
30, 1998 Decision of the Court of Appeals in CA-GR SP No. 47594, which affirmed the
dismissal, without prejudice, of Petitioner Felizardo Obandos action for annulment of contract
and reconveyance earlier ordered by the Regional Trial Court (RTC) of Quezon City, Branch
218.
[1]

[2]

The Facts
In 1964, Alegria Strebel Figueras, together with her stepsons, Eduardo and Francisco, filed a
Petition for settlement of the intestate estate of her deceased husband Jose Figueras. While
settlement of the estate was pending, she died and Eduardo assumed administration of the joint
estates of Don Jose and Doa Alegria. Hardly had the proceedings in both intestacies begun when
Eduardo was served a Petition for Probate of what purported to be Doa Alegrias Last Will and
Testament, filed by Felizardo S. Obando (herein petitioner), a nephew of Doa Alegria.
[3]

[4]

The alleged Will bequeathed to Petitioner Obando and several other members of the Obando clan
properties left by the Figueras couple, including two parcels of land in Gilmore Avenue, New
Manila, Quezon City, covered by TCT Nos. 13741 and 17679. When the probate case was
consolidated with the intestate proceedings, Petitioner Obando was appointed as Eduardos coadministrator of the joint estates.
[5]

[6]

As Eduardo insisted that the alleged Will was a forgery, the document was submitted to the
National Bureau of Investigation (NBI) for examination and comparison of Doa Alegrias alleged
signature therein with samples which both parties accepted as authentic. The NBI found that the
questioned and the standard signatures were not made by the same person. This led to the
indictment and the conviction of Petitioner Obando in Criminal Case 90-85819 for estafa
through falsification of a public document.
[7]

[8]

On February 20, 1990, the probate court denied Eduardos Motion for authority to sell the
aforementioned two parcels of land in New Manila. Despite such denial, Eduardo sold the lots
to Amigo Realty Corporation on the strength of an Order issued by the probate court on May 15,
1991. New titles were issued for these lots in the name of Amigo Realty.
[9]

[10]

On June 4, 1992, Petitioner Obando, in his capacity as co-administrator and universal heir of Doa
Alegria, filed a Complaint against Eduardo and Amigo Realty (collectively referred to as the
respondents) for the nullification of the sale. The proceedings were docketed as Civil Case No.
Q-92-12384 and raffled to the Regional Trial Court of Quezon City, Branch 79.
However, in Special Proceeding Nos. 61567 and 123948, the probate court, in its Order dated
December 17, 1997, removed Petitioner Obando from his office as co-administrator of the joint
estate of the Figueras spouses. Consequently, in the civil case, respondents filed a Joint Motion
to Dismiss dated January 27, 1998, after Obando had rested his case. The respondents built their
evidence around the loss of his legal standing to pursue the case. In its Order dated February
11, 1993, the trial court granted the Motion and dismissed the civil case without prejudice.
[11]

[12]

[13]

Petitioner Obando filed a Motion for Reconsideration to no avail. As earlier stated, the Court of
Appeals likewise dismissed his Petition for Certiorari and Mandamus and affirmed the dismissal
Order of the RTC.
[14]

Ruling of the Court of Appeals

The Court of Appeals rejected the contention of Obando that he did not lose his legal personality
to prosecute the civil case since there was no categorical statement that the purported will was a
forgery and its probate was still pending.
The CA affirmed the dismissal of the action for reconveyance because the probate courts Order
dated February 5, 1998 "alluded" to the fact that the alleged Will was a forgery. That the probate
of the alleged Will had not yet been decided on the merits did not change the fact that the probate
court had removed Petitioner Obando as co-administrator. The dismissal of the civil case was
without prejudice, because the trial judge anticipated that Obando could regain co-administration
of the estates on appeal.
Hence, this Petition.

[15]

Assignment of Errors
In their Memorandum, petitioners raise the following issues:

[16]

"A........WHETHER OR NOT THE COURT OF APPEALS GRAVELY ERRED

IN SANCTIONING THE TRIAL COURTS ALLOWANCE OF RESPONDENTS
JOINT MOTION TO DISMISS, DESPITE THE FACT THAT ONE OF THE
LAWYER-MOVANTS THEREIN WAS NO LONGER THE COUNSEL OF
RECORD FOR RESPONDENT FIGUERAS AT THE TIME THE MOTION
WAS FILED.
"B........WHETHER OR NOT THE COURT OF APPEALS GRAVELY ERRED
IN SANCTIONING THE TRIAL COURTS RADICAL DEPARTURE FROM
THE LAW WHEN IT GRANTED A MOTION TO DISMISS ON LACK OF
CAPACITY TO SUE/LEGAL STANDING AT THE TIME WHEN THE
[PETITIONERS] HAVE ALREADY RESTED THEIR CASE AND THE
[RESPONDENTS] HAVE BEGUN PRESENTATION OF THEIR EVIDENCE.
"C........WHETHER OR NOT THE COURT OF APPEALS GRAVELY ERRED
WHEN IT SANCTIONED THE TRIAL COURTS DISMISSAL OF THE CASE
BASED ON ORDERS OF OTHER COURTS THAT HAVE NOT YET
ATTAINED FINALITY.
"D........WHETHER OR NOT THE COURT OF APPEALS GRAVELY ERRED
WHEN IT UPHELD THE TRIAL COURTS WHIMSICAL AND CAPRICIOUS
DEPARTURE FROM ITS PREVIOUS RULINGS DENYING RESPONDENTS
MOTION TO DISMISS AND MOTION TO SUSPEND PROCEEDINGS.
"E........WHETHER OR NOT THE COURT OF APPEALS GRAVELY ERRED
WHEN IT RENDERED ITS 30 JULY 1998 DECISION IN CA-G.R. 47594
UPHOLDING THE TRIAL COURTS ORDERS DATED 11 FEBRUARY 1998
AND 12 MARCH 1998."
Simply stated, the following issues are raised by the petitioners: (1) whether the trial court could
act on a motion filed by a lawyer who was allegedly no longer Eduardos counsel of record; (2)
whether a motion to dismiss filed after the responsive pleadings were already made can still be
granted; (3) whether the conviction of Petitioner Obando for estafa through falsification and the
revocation of his appointment as administrator, both of which are on appeal, constitute sufficient
grounds to dismiss the civil case; and (4) whether there was a conflict between the Order
dismissing the civil case and the previous actions of the trial court.
The Courts Ruling
The Petition is devoid of merit.
First Issue:
Counsel of Record

Petitioners claim that when Atty. Joaquin Yuseco filed the Motion to Dismiss, he no longer
represented the respondents, as shown by Eduardos Manifestation and Motion dated January 8,
1998, dispensing with said counsels services in the proceedings in view of a Compromise
Agreement with Petitioner Obando.
[17]

We disagree. Representation continues until the court dispenses with the services of counsel in
accordance with Section 26, Rule 138 of the Rules of Court. Counsel may be validly
substituted only if the following requisites are complied with: (1) new counsel files a written
application for substitution; (2) the clients written consent is obtained; and (3) the written
consent of the lawyer to be substituted is secured, if it can still be; if the written consent can no
longer be obtained, then the application for substitution must carry proof that notice of the
motion has been served on the attorney to be substituted in the manner required by the Rules.
[18]

[19]

In this case, we are convinced that Eduardo did not dismiss Attorney Yuseco. In fact, the former
manifested that he had been tricked by Petitioner Obando into signing the aforesaid
Manifestation and Motion and Compromise Agreement. Besides, the filing of the Motion to
Dismiss was not prejudicial but beneficial to the said respondent; hence, he had no reason to
complain. At the discretion of the court, an attorney who has already been dismissed by the client
is allowed to intervene in a case in order to protect the clients rights. In the present case, had
there been any irregularity, it should have been raised by the respondents, not the petitioners.
Second Issue:
Timeliness of the Motion to Dismiss
The Rules provide that a motion to dismiss may be submitted only before the filing of a
responsive pleading. Thus, petitioners complain that it was already too late for Respondent
Eduardo Figueras to file a Motion to Dismiss after Obando had finished presenting his evidence.
[20]

This is not so. The period to file a motion to dismiss depends upon the circumstances of the case.
Section 1 of Rule 16 of the Rules of Court requires that, in general, a motion to dismiss should
be filed within the reglementary period for filing a responsive pleading. Thus, a motion to
dismiss alleging improper venue cannot be entertained unless made within that period.
[21]

However, even after an answer has been filed, the Court has allowed a defendant to file a motion
to dismiss on the following grounds: (1) lack of jurisdiction, (2) litis pendentia, (3) lack of
cause of action, and (4) discovery during trial of evidence that would constitute a ground for
dismissal. Except for lack of cause of action or lack of jurisdiction, the grounds under Section 1
of Rule 16 may be waived. If a particular ground for dismissal is not raised or if no motion to
dismiss is filed at all within the reglementary period, it is generally considered waived under
Section 1, Rule 9 of the Rules.
[22]

[23]

[24]

[25]

[26]

Applying this principle to the case at bar, the respondents did not waive their right to move for
the dismissal of the civil case based on Petitioner Obandos lack of legal capacity. It must be
pointed out that it was only after he had been convicted of estafa through falsification that the

probate court divested him of his representation of the Figueras estates. It was only then that this
ground became available to the respondents. Hence, it could not be said that they waived it by
raising it in a Motion to Dismiss filed after their Answer was submitted. Verily, if the plaintiff
loses his capacity to sue during the pendency of the case, as in the present controversy, the
defendant should be allowed to file a motion to dismiss, even after the lapse of the reglementary
period for filing a responsive pleading.
Third Issue:
Removal from Administration
Petitioners aver that it was premature for the trial court to dismiss the civil case because Obandos
conviction for estafa through falsification was still on appeal.
We disagree. This argument has no bearing at all on the dismissal of the civil case. Petitioner
Obando derived his power to represent the estate of the deceased couple from his appointment as
co-administrator. When the probate court removed him from office, he lost that authority. Since
he lacked the legal capacity to sue on behalf of the Figueras estates, he could not continue
prosecuting the civil case. Thus the trial court properly granted the Motion to Dismiss on this
ground. Whether a final conviction for a crime involving moral turpitude is necessary to
remove him from his administration is not a proper issue in this Petition. He should raise the
matter in his appeal of the Decision removing him from administration of the Figueras
estates.
[27]

[28]

[29]

The fact that the conviction of Obando and his removal from administration are on appeal only
means that his legal standing could be restored; thus, the civil case was correctly dismissed
without prejudice. If his conviction is reversed and his appointment restored by the probate court,
the case may continue without being barred by res judicata. The lower courts Decision showed
that it was careful in its action. On the other hand, Obando has yet to show that he has regained
administration of the Figueras estates. Noteworthy also is the fact that his removal from office
was predicated not only on his conviction for a crime, but also on his failure to render an
accounting of the rentals of a property leased to the Community of Learners.
Fourth Issue:
No Conflicting Rulings
Respondent Eduardo Figueras earlier Motion to Dismiss was denied in the trial courts March 4,
1993 Order which reads:
"x x x [I]t is pertinent to note that the criminal case of Estafa through Falsification
of Public Document filed against [petitioner] and the Petition to Remove him as
co-administrator are still pending determination. Thus, suffice it to state that while
herein [petitioner] remains as the co-administrator of the estates of the deceased
Figueras the Court will continue to recognize his right to institute the instant case

in his capacity as judicial administrator, unless he be removed as such by the

probate Court pursuant to Rule 82 of the Revised Rules of Court."
[30]

Thus, petitioners allege that the trial court whimsically and capriciously departed from its
previous rulings when, in its Resolution dated February 11, 1993, it granted Eduardos later
Motion to Dismiss.
[31]

We cannot see any conflict between these trial court rulings. Obviously, they were based on
different grounds. The first Motion to Dismiss was denied because, at the time, Petitioner
Obando still had legal capacity to sue as co-administrator of the Figueras estates. On the other
hand, the second Motion was granted because the probate court had already removed him from
his office as co-administrator. The change in his legal capacity accounts for the difference in the
adjudication of the trial court. We see no reversible error in the appellate courts affirmance of the
trial court.
WHEREFORE, the Petition is hereby DENIED and the assailed Resolution AFFIRMED. Costs
against petitioners.
SO ORDERED.2/29/00 10:57 AM
Melo, (Chairman), Vitug, Purisima, and Gonzaga-Reyes, JJ., concur.

Penned by J. Jesus M. Elbinias and concurred in by JJ. Demetrio G. Demetria and Roberto A. Barrios.
Presided over by Judge Hilario L. Laqui.
[3]
Docketed as Special Proceedings No. 61567.
[4]
Docketed as Special Proceedings No. 123948.
[5]
Petition, p. 3; rollo, p. 15.
[6]
Ibid.
[7]
Annex "1"; rollo, pp. 66-67.
[8]
RTC Decision, p. 8; rollo, p. 87.
[9]
Memorandum for Petitioner, p. 3; rollo, p. 701.
[10]
Ibid.
[11]
Order of December 17, 1997; rollo, pp. 89-91.
[12]
Annex "3"; rollo, pp. 74-77.
[13]
RTC Resolution; rollo, p. 47.
[14]
CA Decision; rollo, p. 9.
[15]
This case was submitted for decision on May 7, 1999 upon this Courts receipt of the petitioners Memorandum
signed by Atty. Redentor S. Roque. The respondents Memorandum was submitted on April 20, 1999 by Atty.
Joaquin Yuseco.
[16]
Rollo, pp. 204-205.
[17]
Annex D, Petition; rollo, pp. 41-42.
[1]
[2]

"SEC. 26. Change of attorneys.An attorney may retire at any time from any action or special proceeding, by the
written consent of his client filed in court. He may also retire at any time from an action or special proceeding,
without the consent of his client, should the court, on notice to the client and attorney, and on hearing, determine that
he ought to be allowed to retire. In case of substitution, the name of the attorney newly employed shall be entered on
the docket of the court in place of the former one, and written notice of the change shall be given to the adverse
party.
[18]

"A client may at any time dismiss his attorney or substitute another in his place, but if the contract between client
and attorney has been reduced to writing and the dismissal of the attorney was without justifiable cause, he shall be
entitled to recover from the client the full compensation stipulated in the contract. However, the attorney may, in the
discretion of the court, intervene in the case to protect his rights. For the payment of his compensation the attorney
shall have a lien upon all judgments for the payment of money, and execution issued in pursuance of such judgments
rendered in the case wherein his service had been retained by the client."
[19]
Yu v. Court of Appeals, 135 SCRA 181, 189-190, February 28, 1985.
[20]

The Rules of Court provides in Rule 16, Section 1:

"SECTION 1. Grounds.Within the time for but before filing the answer to the complaint or pleading asserting a
claim, a motion to dismiss may be made on any of the following grounds:
x x x.......x x x.......x x x
(d)That the plaintiff has no legal capacity to sue;
x x x.......x x x.......x x x."
[21]
Juanillo v. de la Rama, 74 Phil. 43, November 28, 1942; Vicente J. Francisco, The Revised Rules of Court in the
Philippines, Vol. 1, 1973 ed., p. 880.
[22]
Community Investment & Finance Corp. v. Garcia, 88 Phil. 215, 220-221, February 27, 1951; Ker & Co. v. Court
of Tax Appeals, 4 SCRA 160, 165, January 31, 1962.
[23]
Matela v. Chua Tay, 5 SCRA 163, 169-170, May 30, 1962.
[24]
Ocampo v. Buenaventura, 55 SCRA 267, 274-275, January 24, 1974.
[25]
Quiaoit v. Consolacion, 73 SCRA 208, 213, September 30, 1976.
[26]

The Rules of Court provides in Rule 9, Section 1:

"SECTION 1. Defenses and objections not pleaded.Defenses and objections not pleaded either in a motion to
dismiss or in the answer are deemed waived. However, when it appears from the pleadings or the evidence on record
that the court has no jurisdiction over the subject matter, that there is another action pending between the same
parties for the same cause, or that the action is barred by a prior judgment or by statute of limitations, the court shall
dismiss the claim."
[27]
The Rules of Court, in Rule 87, Sec. 2, allows an executor or administrator to bring or defend, in the right of the
deceased, actions for causes which survive.
[28]
Lunsod v. Ortega, 46 Phil. 664, 676, September 19, 1921.
[29]
Acain v. Intermediate Appellate Court, 155 SCRA 100, 110, October 27, 1987; Saguimsim v. Lindayag, 6 SCRA
874, December 17, 1962.
[30]
Order of March 4, 1993, rollo, p. 35.